“Many
that live deserve death. And some that die deserve life. Can you give it to
them? Then do not be too eager to deal out death in judgment.”
― J.R.R. Tolkien, The Fellowship of the Ring
― J.R.R. Tolkien, The Fellowship of the Ring
Truly
said the life which is taken cannot be retorted and after all judges are not
God’s angel there are chances of missteps we cannot expect Excellency then why
to risk a life?
Well
Punishments are known to have existed through out the history in every societies,
capital punishment is one by which an offender is sentenced to death for
committing heinous crime like murder, waging or attempt wage war against the
Government of India ,abetment of mutiny actually committed, giving or
fabricating false evidence upon which an innocent person suffers death ,murder
by a life convict, abetment of suicide of a child or an insane or intoxicated
person, attempt to murder by a life convict, dacoity with murder. The death
punishment is based on the theory of punishment that life should go for life,
eye for eye, hand for hand, tooth for tooth and foot for foot.
It
is to be borne in mind that India before it executed Ajmal Kasab and Afzal Guru
in 2012 had an execution free run for a period of 8 years. This de facto
moratorium led many to believe and argue that India must consider the utility
and desirability of retaining this most exceptional and absolute penalty.
Editorials in major newspapers have been published asking for a re-look at death
penalty.[1] On
January 21, 2014,
the
Supreme Court in the case of Shatrughan
Chauhan v Union of India[2] commuted death sentences of 15 death convicts
to life sentence. These death row convicts approached the apex court as a final
resort after their mercy petitions were dismissed by the President of India.
The Court in this batch matter held that various supervening circumstances
which had arisen since the death
sentences were confirmed by the Supreme Court in the cases of these death row
convicts had violated their Fundamental Rights to the extent of making the
actual execution of their sentences unfair and excessive. Soon after this
decision, the Supreme Court in Sriharan v.Union of India[3]
, once again invoked this strand of
death jurisprudence to commute the death sentences of all the three convicts in
the Rajiv Gandhi Assassination case. Likewise, in the case Defender Pal Bhuller[4]
the Court commuted the death sentence of the convict on the ground of
inordinate delay in the execution of sentence and mental health problems faced
by the petitioner. Capital punishment is one of the oldest forms of penal
system. It is considered that capital punishment violates the humanitarian
sentiments. As result of the humanizing impact of modern sociology and other
science of human behavior several countries of the world have abolished the
capital punishment. The movement for the abolition of capital punishment in India in the year
1956
when a bill was introduced in the Loksabha for this purpose. It was a matter of
debate whether the death penalty be retained or stopped. The house rejected the
Bill. Again in the year 1962 a Bill was introduced in opinion of Law commission
was called for by the Government of this point. The Law Commission said that
the risk involved in the abolition of capital punishment could not be
undertaken in the present state of the country. In the last decade death
penalty has become a subject-matter of intense focus in the Supreme Court. The
Apex Court on various occasions has wrestled with the disparate application of
law on death penalty and constitutional fairness implications of the same. Law
Commision in its 35th report recommended to abolish section 303
which provides for mandatory death penalt as result in Mithu v State of Punjab[5]
The honourable Supreme Court struck down section 303 and it was held that
it is violation article 14 and 21 of the Constitution that no person shall be
deprived of his life or personal liberty except according to procedure
established by law. The section was originally conceived to discourage assaults
by life convicts on the prison staff, but the legislature chose language which
far exceeded its intention.”Relying upon Mithu
v State of Punjab, the Supreme Court in , struck down section 27(3) of Arms
Act, 1959 providing for mandatory death penalty. In India capital punishment
has not been abolished,
yet it is awarded only in the rare case. The legality as well as
constitutionality of death penalty has been upheld by the Apex court in India.
Decision of the constitution Benches in Jagmohan Singh v. State of Punjab-
A.I.R. 1973 S.C. 947, Bachan Singh v. State of Punjab- A.I.R. 1980 S.C. 848 and
Deena v. Union of India-1983 Crl. L.J. 1602 are the authorities on the
controversy of these decisions Bachan Singh case may be regarded as treatise on
the subject. Senior advocate K. G. Kannabiran has opined that The
apex Court has ruled that courts should award the death sentence only in the
‘rarest of rare’ cases, but if every court trying a person for a capital
offence finds that the case before it is the rarest, the progress of the
abolitionists will be illusory. The study that follows should leave no one in
any doubt about the arbitrary way in which the Supreme Court has upheld or
commuted death sentences using the ‘rarest of rare’ formula and the judicial
equivalents that preceded it equivalents that preceded it.
The neutrality of law and the
clinical detachment of professional members of the Bench and the legal
profession has always been an opaque and invalid assumption in India. As
Justice Holmes of the US Supreme Court pointed out over a century ago, the life
of law is not logic. Any understanding of law and justice would comprehend “the
felt necessities of the time, the prevalent moral and political theories,
institutions of public policy, avowed and unconscious even prejudices judges
share with their fellow men… The decision will depend upon a judgment, an
intuition more subtle than any articulate major premise.” In its unexpurgated
sense, this applies to India now where examples of the partiality of rule of
law institutions abound. Criminal cases such as those of Jessica Lal and
Priyadarshini Mattoo in which the accused (with powerful connections) were
acquitted at the trial stage are recent examples of the vulnerability of the
criminal justice system to pressures unrelated to the legal system. Unless the
police and investigative machinery are fully cleansed, it would be a crime to
talk about deterrent or retributive sentencing and employ the death penalty as
a form of punishment.
The
current state of impunity enjoyed by the Indian state and its investigative
agencies should make us pause to think whether those awaiting execution should
at all be executed. The 1984 Sikh massacre in Delhi, the post Babri Masjid
Mumbai killings, the death and destruction that followed the Coimbatore blasts
and the killing of thousands of Muslims in Gujarat are all examples of the
state’s suspension of the rule of law during and following incidents of massive
violence. Does this not itself undermine the credibility of the death sentence
as a principle of rule of law?
Amensty International Charity Limited reported that At least 1,634 people were executed in 25 countries in 2015.
This represents a stark increase on the number of executions recorded in 2014
of more than 50%;
in 2014 Amnesty International recorded 1,061 executions in 22 countries worldwide.
This is the highest number of executions recorded
in more than 25 years (since 1989).Most executions took place in China, Iran, Pakistan, Saudi
Arabia and the USA – in
that order.China remained the world’s top executioner – but the true extent of
the use of the death penalty in China is unknown as this data is considered a
state secret; the figure of 1,634 excludes the thousands of executions believed
to have been carried out in China.Excluding China, almost 90% of all executions took place in just
three countries – Iran,
Pakistan and Saudi Arabia.During 2015, 25 countries, about one in 10
of all countries worldwide, are known to have carried out executions – a rise
from 22 in 2014. This number has decreased significantly from two decades ago (39
countries carried out executions in 1996).140 countries worldwide, more than
two-thirds, are abolitionist in law or practice.In 2015, four countries – Fiji,
Madagascar, the Republic of Congo and Suriname – abolished the death penalty
for all crimes. In total, 102 countries have done so – a majority of
the world’s states. In 2015, Mongolia also passed a new criminal code
abolishing the death penalty which will come into effect later in 2016. Constitutionally of death penalty is
challenged as well as the question as to whether procedure established by
Indian Penal Law both substantive and procedural for imposition of death
penalty is not fair, just and reasonable is raised by abolitionist .
The lothel report on death penalty
presented by Amnesty International India and People’s Union for Civil Liberties
(Tamil Nadu & Puducherry) urge the Government of India to abolish the death
penalty and thereby open the way to accession to the Second Optional Protocol
to the International Covenant on Civil and Political Rights (which commits
nations to the permanent abolition of the death penalty). They suggests number
of steps that should be immediately taken to insure justice
Impose an immediate
moratorium on executions pending abolition of the death penalty.
Ensure that the death penalty is not imposed
or carried out on anyone suffering from a mental disability.
Abolish all provisions in
legislation which provide for mandatory death sentences.
Initiate an urgent independent study
into the extent to which national law and international standards for fair
trial and other relevant international standards .
Provide compensation and care to
those found to have been the victims of miscarriages of justice in capital
cases.
End the secrecy surrounding
application of the death penalty by making all information regarding the past
use of the death penalty, and the total number of persons presently on death
row with details of their cases, publicly available.
Provide a mandatory
appeal to the Supreme Court in all cases where a death sentence has been
awarded (including by any military court) as previously recommended by the Law
Commission of India;
Implement the Law Commission’s recommendation
that a Bench of five judges decides any capital case in the Supreme Court;
Recognise the requirement of unanimity of
judges as a procedural safeguard in the award of the death penalty;
And the most importantly to End
torture, ill-treatment and coerced confessions which is very easily practiced in Indian legal
system to fool the public that justice is insured and to abolish following
steps must be taken
Order an investigation
into the cases of prisoners on death row who were reported to have been
tortured, ill-treated or denied access to legal counsel during police
questioning;
Ensure that ‘confessions’ obtained under
duress are never invoked by state prosecutors in legal proceedings against
criminal suspects;
Ensure that anyone who faces the death penalty
has an effective right to competent state appointed legal counsel of the
defendant’s choice during the entire legal process, including appeals and mercy
petitions;
Ratify the UN Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment as also its Optional
Protocol.
Therefore in the
considered view of jurists, academicians and civilized society such blood
thirsty punishment are no more in tune with the present civilized society in
recent time when all human beings enjoy equal rights and privileges and every
man is respected as a human being
[1]
See
Indian Express Editorial, “justice more
humane
”, January 22,2014 available
at
http://indianexpress.com/article/opinion/e
ditorials/justice-more-humane/
[2] (2014) 3 SCC 1
[3] (2014) 4 SCC 242
[4]
,Navneet kaur v State(NCT)
Curative Petition (Criminal) No. 88 of
2013
(Decided on March 31, 2014).
[5] (1983) 2 SCC 277
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